Supreme Court and Senate: Serge Joyal still knows what you did that summer

Paul Wells on second day of arguments


Adrian Wyld/CP

The second day of arguments at the Supreme Court of Canada on the federal government’s Senate reference was given over to arguments about the intentions of the framers. Ah, the framers. Every constitution’s got some: those wise fellows (almost always fellows) in dusty portraits, hallowed because the document they wrote informs the relationships among citizens down to today. In the U.S., the Founding Fathers were hard at work in 1787. Arguments about what they intended, and whether that should inform constitutional interpretation, are at the heart of Supreme Court debates to this day.

In Canada we get less of that because for nearly a century judges have told one another that Canada’s constitution is “a living tree,” which in extreme cases can seem to mean there’s no point reading the thing. Canadian conservatives are not fond of the notion.

But on Wednesday the debates got very specific, and they had to do with the intention of a particular set of Canadian constitutional founders: those who negotiated the Constitution Act, 1982, with its very specific amending formula. Some amendments to the constitution could henceforth be done by Ottawa alone; others by Ottawa and one or a few affected provincial legislatures; still others by Parliament cooperating with 7 provinces accounting for half the country’s population; and yet others would require the unanimous consent of Ottawa and every provincial legislature.

Where does the Senate fit in there? It’s not obvious. The composition of the Senate is not among the subjects enumerated in Part 5 of the Act, the one dealing with amending procedures. So you kind of have to guess how you’re going to go about abolishing the Senate, if you wanted to. Most provinces are arguing this week that it would require the unanimous consent of every provincial legislature, plus the federal Parliament. Alberta and Saskatchewan are saying it would take only 7 provinces with half the country’s population.

Things quickly got silly. As Sean Fine’s Globe account describes it:

Justice Thomas Cromwell of Nova Scotia, after listening to lawyer Nancy Brown present B.C.’s views, said, “Your position is that we could abolish both the Senate and the House of Commons” with the approval of seven provinces representing half of Canadians?

“Exactly,” Ms. Brown replied….

Justice Andromache Karakatsanis of Ontario noted that, just like abolition of the Senate, the right to vote and to have elections is not mentioned in the rules for amending the constitution. She asked lawyer Graeme Mitchell, representing Saskatchewan, whether the right to vote and the existence of elections could be ended with the consent of seven provinces with 50 per cent of Canada’s people.

…When Mr. Mitchell agreed, Justice Louis LeBel of Quebec jumped in. “So Canada could be turned into a dictatorship” under the section that provides for amendments by a majority of provinces and people.

As Justice Rosalie Abella pointed out at one point, all this speculation about the will of the founders was a bit odd, because in this instance the founders’ bones have not for the most part been ground to dust. One of them was Jean Chrétien; Google Maps tells me his office is 900 metres from the Supreme Court building. Roy McMurtry was there too, and Roy Romanow, and many others still extant. Surely it should be possible to ask them what they intended.

And indeed, there was a whiff of the supernatural about the appearance a few hours later of Serge Joyal, a Liberal senator still serving, who was chairman of the special Commons committee studying the Constitutional repatriation project more than 30 years ago. It was a highlight of his career as an MP; Pierre Trudeau did not make him a senior cabinet minister or put him in the Senate. That task fell to Jean Chrétien in 1997.

Joyal is a man of many interests. He spent several years documenting the mismatch in government spending on arts infrastructure in Toronto compared to Montreal; I suspect his efforts had much to do with Jean Charest’s decision to pay for a new concert hall at Place des Arts. Here on my desk I have a copy of Joyal’s 550-page book, published last month, Le Mythe de Napoléon au Canada Français, which explores ideas of Napoleon among early French Canadians.

Today he argued for about 20 minutes without notes or interruption (in English, his second language) for the idea that the Senate cannot become elected, term-limited or abolished without unanimous federal-provincial consent. There is no need to wonder what the “founders,” still breathing or lately deceased, thought about Senate abolition, he told the Supremes: they didn’t. His committee heard many witnesses who testified about the possibility of abolishing the monarchy. None who imagined getting rid of the Senate.

Term limits? Three prime ministers have served longer than nine years, he said, meaning they could have appointed an entire Senate while in office. The notion of term limits was indeed discussed — not in relation to the 1982 Constitution Act, but before its predecessor, the BNA Act, was completed in 1867. Joyal read quotes from a public figure who had rejected a 9-year term limit on the grounds that any term-limited Senator would spend part of his tenure looking around for other job opportunities, or begging to be re-appointed. When was that written? “Eighteen sixty-five,” Joyal said. Turns out he’s an authority on two sets of founders.

Thursday the amici curiae, two lawyers in private practice hired by the Supremes to argue any viewpoint they deem pertinent, as a means of ensuring a complete debate, will present their arguments. Then the ermine-clad solons will retire to their corners to write an opinion. At some level it doesn’t matter all that much what they decide.

The debate on whether the Senate can be elected and term-limited without formal approval by several provinces seems lost; only the federal government has argued that it could. The debate on abolition is unsettled, with most intervenors calling for a unanimity requirement and a smaller number saying the 7/50 rule could apply.

Does it really make a difference, except as a matter of legal interest? I’m trying to imagine a Prime Minister Stephen Harper rallying seven provinces in support of Senate abolition. (A Prime Minister Thomas Mulcair would face most of the obstacles I’m about to describe. Justin Trudeau has shown no interest in abolishing the upper house.)

It’s probably fair to take the list of provinces calling for unanimity as a rough proxy for the list of provinces that would oppose a concrete abolition plan. There are seven of them (all but Alberta, Saskatchewan and British Columbia) representing more than half the country’s population. The PM would need a list of provinces that support abolition on its merits; a few more whose premiers would sense public-opinion support for abolition and play along to stay on the right side of the public; and a few friends in provincial premiers’ offices who would go along because their pal the PM needed a favour.

There’s no such list of premiers. Harper used to have allies in provincial capitals: John Hamm in Nova Scotia, Jean Charest, for a while, in Quebec. Kathy Dunderdale campaigned for him in Newfoundland in 2011. But the others are out of office and Dunderdale is no longer much of a fan. Harper could maybe count on Saskatchewan’s Brad Wall as a steady personal ally, if only on this file, but that leaves most of the spots the PM needs filled on his dance card still empty.

The longer this court process goes on, the surer I get that the Senate will never be abolished.


Supreme Court and Senate: Serge Joyal still knows what you did that summer

  1. I heard something on cbc north about how they goofed somehow by not including the Territory, Nunavut and Yukon in this senatorial fandango. Boy are we[i] going to be pissed right after we [i] i finish shoveling the driveway out.

    What is the PM up to here? Confirming he and his allies are clueless before the highest court in the land? Revving up to take on them uppity courts?

    Or is this three dimensional chess…he’s establishing what everyone but AB,SK, BC and Mulcair + PP already knew…it can’t be abolished. Ergo., what other route is there but for reforming the joint? Now he thinks he’s got a mandate. Never mind all that $90,000 thou or the Duffy, Pam and Patrick show…he’s got stuff to do. He’ll just pretend he always meant to go this way, but everyone was blocking him.
    Bit of a Hail Mary isn’t it?

    • Revving up to take on them uppity courts?

  2. I’m curious to know if anyone has given a decent rebuttal to Reid’s argument the SCoC is grabbing power it isn’t entitled to? I can’t imagine it is a view widely shared by liberal scholars or the chief justice.

  3. http://news.nationalpost.com/2013/11/06/reform-is-not-possible-saskatchewan-set-to-repeal-senate-election-law-so-it-can-focus-on-abolition/

    [Premier Brad Wall then plans to table a motion in the legislature calling for the abolition of the Senate.

    Wall says he believes that most people in Saskatchewan agree that the Senate no longer serves any useful purpose and is not worth the $100 million in taxpayer money spent on it each year.

    The premier had been a proponent of Senate reform, but said this spring that he no longer believes meaningful reform is possible.] excerpt from the article.

    People need to grasp the problem; abolishing or reforming the Senate involves the electoral system, and changing that is even more complicated.

    The First by The Post voting system gives a PM the opportunity to win a majority of seats in the House of Commons, which means that he (or she) can pass any legislation. And the PM doesn’t need a majority of the popular vote to win, which was the situation when Harper won.

    This means, that for 5 years, the PM is a dictator who can do anything, pass any legislation, and there is nothing anyone can do to stop him (or her). The Senate provides that backstop, because the legislation passed by the House goes to the Senate for review, amendment, or return to the House before the legislation can proceed to the GG for Royal Assent. This means that abolishing the Senate forces a necessity to reform the voting system.

    The best option is a Proportional Representative Voting system like one used in Australia or New Zealand. There, majority governments are impossible. Each party in an election wins a number of seats in the House proportional to the popular vote derived in an election. With this system, Harper would not have a majority, and no other PMs would either. Governments would have to function like a permanent minority by cooperating with other parties to pass legislation. And because no parties can win a majority, they will cooperate; there is no majority to scheme and manipulate to win in a subsequent election.

    A Proportional Representative voting system would create a situation where a Senate is superfluous and that would permit abolition. New Zealand has abolished their Senate, but only after reforming their voting system to a Proportional one.

    Imagine how difficult it will be to make such fundamental change here. We know Quebec will oppose proportional voting, unless it favours the Separatist Cause, or fosters the belief that Quebec can remain a separate culture, but for the rest of us, it would make abolishing the Senate doable without losing our freedom.

    But, ask yourself, how likely is it? Such change needs a government willing to pass legislation that would reduce the power of a PM. Yes, it seems far-fetched, particularly this government, but without this kind of change, we cannot abolish the Senate. Harper will never do it, whatever he may say in a campaign.

    The Liberals or the NDP might do it. The Liberals under Justin might try because they are a minority in the Senate and their leader says he wants “to change the way politics is done in Ottawa.” The NDP might do it as long as Quebec can be persuaded that their position in Confederation will be strengthened, not weakened.

    Think about it, because whether or not the Constitutional hurdles can be overcome, there are practical ones far more daunting to consider before holding up that banner in favour of abolishing the Senate.

    • Justin Trudeau is on record stating he prefers the status quo in the Senate. He doesn’t believe it needs to be reformed or abolished.

      • He is only on record saying that he “would change the way politics is done in Ottawa.” Just what that means, if anything, remains to be seen. I didn’t suggest that he was ‘on record’ for anything more specific.

  4. The main problem with the senate is related to who sits in it and how they get there. We should not have an elected senate because that would simply create political stalemates with the Commons. We shouldn’t have party hacks or has-been politicians either. We should have people with expertise is science, environmental policy, economics etc.
    One way that this could occur is if the Commons were to pass a bill stating that senators be named based on a 2/3 majority vote by the Commons rather than on the choice of one person (the PM). Senators would still have to fulfill the other requirements (residency etc), and the PM would still propose names to the Commons, but such people would have to pass with a 2/3 vote, meaning that they would have to be people acceptable to more than on party. This would mean that the emphasis would be on qualifications rather than political affiliation.
    The beauty is that this would not require any constitutional change, it would only require the PM and the governing party to willingly give up the power of patronage to the full body of elected MPs.
    So, Mr. Harper, will you put your money where your mouth is?

    • If the SCOC rules that having voters elect senators requires the provinces to be on board, I’m pretty sure they’d also rule that having MPs vote on selecting senators would require the provinces to be on board. Ie. it would still require a constitutional change.

      • I’m not a constitutional expert so you might be right, but I don’t think so. The PM would still propose the candidate, and the PM would still pass on this candidate to the GG just as the constitution requires. The only difference would be that the PM would require the agreement of 2/3 of the Commons before he passes on his recommendation. It is similar (not identical) to how judges are chosen.

        • You may be right, but that would require the government accepting that as convention. If that were to be put into law, it would require constitutional tinkering. I believe it would be the same as Paul mentions above, how Harper appointed Bert Brown from Alberta, because he was elected by Albertans, but Paul Martin and Jean Chretien ignored those election results.

          In other words, Harper could choose to go to the HoC to vet any senatorial candidates, but by no means would he or any future PM be required to without changing the constitution (assuming Paul’s right about how the SCOC will rule).

  5. Question Paul. Will the SCOC’s decision have any bearing on the Senate elections held in Alberta? Could their ruling possibly end up making Bert Brown’s appointment illegal?

    Or will provinces still be allowed to hold Senate elections, and can the PM still appoint those senators who’ve been elected?

    • I believe provincial elections would not be affected. Recall that Chrétien (and Martin, if I recall correctly) ignored the results of Alberta Senate elections.

      • Thanks for the reply. So essentially we’ll have a situation where provinces CAN elect Senator’s if they want to, but the PM has no obligation to execute their will? Yikes.

        Thank God we live in a democracy where we have a constitution that can’t be changed and the people’s will can be ignored :)

  6. I don’t understand all this running to the supreme court. Change what you can without any reference, like taking some of the power away from our benevolent dictator and having all senate appointments being confirmed by a equal, effective and elected committee of the House of Commons. Maybe if other had a say no Prime Minister could load the senate with his lap dogs.

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